Judge says state should 'beef up' DEP

CHARLESTON, W.Va. -- West Virginia lawmakers should consider action to "beef up" the state Department of Environmental Protection so agency officials could more quickly clean up abandoned coal mines across the state, a federal judge said Friday.

U.S. District Judge John T. Copenhaver said he's concerned the DEP won't be able to move as quickly as required by a new legal settlement aimed at improving water pollution treatment at more than 170 sites in 20 counties.

During a meeting with lawyers for citizen groups and state and federal agencies, Copenhaver noted that the proposed settlement -- which needs court approval to take effect -- gives the DEP until the end of 2015 to issue pollution limits for the sites.

"This moves so slowly with so many one year and so many the next year and all the way out," the judge said. "I'm fearful that we'll find out that even this schedule won't be met and even this will be delayed."

Ben Bailey, outside counsel to the DEP on the matter, told Copenhaver that agency officials felt comfortable they could meet the settlement's overall goal of handling discharge permits for about 50 abandoned sites per year.

"We think we can do one a week, but each one is site-specific, and they take a lot of work," Bailey said. "I will take it back to my client again and see what we can do."

Copenhaver held Friday's status meeting with lawyers to discuss two matters pending in his court regarding the DEP's Special Reclamation Program, which is charged with cleaning up coal mines abandoned since passage of the 1977 federal strip-mining law.

In one case, the judge is considering whether to approve the new settlement between DEP and the West Virginia Highlands Conservancy setting a schedule to improve water treatment at abandoned mine sites. In the other, Conservancy lawyers want Copenhaver to order the federal Office of Surface Mining to take over management of the long-underfunded special reclamation program.

Historically, the fund has been short of money because coal operators had not posted reclamation bonds sufficient to cover the true cost of mine cleanups at sites that are abandoned. A state tax on coal production was never set high enough to cover the difference.

The problem dates back to the 1980s, when the state first obtained approval from OSM to run its own strip-mining program under the 1977 federal law.

The late U.S. District Judge Charles H. Haden II had chastised regulators for failing to fix the problem, saying they had created a "climate of lawlessness." But Haden declined to step in after the Wise administration increased the special reclamation tax and created an advisory board meant to guide the DEP and the Legislature in ensuring adequate funding for mine cleanups.

In March, Conservancy lawyers sought to reopen the case that Haden ruled on, citing inaction by lawmakers in the face of audits showing continued funding problems in the reclamation program.

The DEP's Special Reclamation Advisory Council had urged lawmakers to double the special reclamation tax, but the Legislature did nothing after DEP Secretary Randy Huffman sent a letter opposing the advisory council's recommendation.

Ruth Ann Story, a lawyer for the OSM, told Copenhaver that agency officials believe he should not take any action until another audit and actuarial report on the special reclamation fund is finished later this year. Jim Snyder, a lawyer for the West Virginia Coal Association, agreed.

Conservancy lawyer Joe Lovett said the OSM and the coal industry are just looking for ways to delay action.

"There's been too much delay already," Lovett said. "We believe time is of the essence and the time for delay has passed."

Lovett said action by Copenhaver and the OSM -- and fear of a possible federal takeover of parts of the DEP -- could force state political leaders to act.

"If OSM is forced into the mix, the Legislature might act differently," Lovett said. "Right now, there's just no pressure. The only way to move the state forward is for OSM to be forced into action."Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.